Overdid with security

27.07.2018

How many rulings are required to secure a claim? To be sure, there should be two: the first one – on the prohibition of state registration and the commission of any actions with the land, the second – on its arrest. This is exactly what a judge from Ternopil region did, but he proved that he acted not intentionally.

Excess ruling

Viktor Dzyubych from the Ternopil city district court did not agree with the conclusion of the other disciplinary chamber of the High Council of Justice, which saw signs of negligence in such actions. At the same time, the members of the Chamber established no evidence of the willfulness of the committed actions and decided to confine themselves to a warning.

It would seem that this is not such a severe punishment. However, the judge did not want to stain his reputation and appealed against the decision in the HCJ. In the course of the case, he explained that the first ruling to secure the claim was not fulfilled. In addition, the ruling to impose an arrest did not violate anyone`s rights and did not cause damage to third parties.

Also, according to V. Dzyubych, the provisions of Article 117 of the Code of Administrative Proceedings (in the edition that existed before 15.12.2017) do not require the availability of all the grounds provided for in paragraph 1 of this article to ensure the claim as a whole.

It is enough to submit only one of them.

At the same time, as the speaker Vadym Belyanevych emphasized, the ruling does not justify the use of such a measure of protection. In addition, the Code contains an exhaustive list of security measures for entities exercising effective power: the suspension of his decision or individual provisions and the prohibition to do certain actions (Paragraphs.3, 4 Article117 KAP). There is no provision for the same kind as an arrest of property.

He suggested rejecting the complaint, since he believed that the penalty was entirely consistent with the nature of the offense.

Excessive workload

Instead, V. Dzyubych asked to consider that, having satisfied both statements about taking measures to secure a claim, he was not intended to violate the rights of third parties in the case. On the contrary, he tried not to allow a possible violation of the rights of the plaintiff and not complicate the implementation of the decision, if it was taken in his favor.

At the same time, neither the first nor the second rulings were challenged in the appellate instance. That is, the parties to the process agreed with them. However, as Iryna Mamontov drew attention, the disciplinary complaint is very similar to the appeal, it even contains a request for a renewal of the time limit for appeal. So, probably, the text was modified and used it in such a way that the work did not go to the trash.

At the same time, V. Dzyubych asked the Council members to take into account and excessive workload. After all, for example, in 2016 he had to deal with 989 cases and 525 files, and last year, even more – 1304 and 426, respectively. As it turns out that the judge should have made a decision in a minimum of five cases within one working day, not to mention other materials. How not to misuse the procedural rules of different types of the proceedings? In addition, at that time he considered mainly civil cases and only 7-10% of them were administrative ones.

To a certain extent, he was supported by a member of the HCJ, Mykola Husak, who posed a question specifically about the performance of the judge. As V. Dzyubych explained, he had about 10% of canceled decisions, which is below the average for Ukraine. Recall that, according to judicial statistics, in 2016, at an average, 18% of decisions in civil cases and 37% of sentences were canceled.

Within the European recommendations

However, at present, the HCJ maintains the position that bringing the servant of Themis to liability is possible only in the case of a deliberate offense in the exercise of judicial functions. That is, the parties must use the procedural mechanisms to cancel decisions that they consider illegal. In particular, the Advisory Council of European Judges is focused on it by conclusions № 3 (2002) and № 11 (2008).

At the same time, the document of the Chamber says that V. Dzyubych violated “the obvious and understandable requirements of procedural law, namely: Articles 5, 117 and 165 of the CAP”. And this is not a mistake, but negligence, although is not intentional. But CM/Rec (2010) 12 of the Committee of Ministers of the Council of Europe refers to “gross negligence” as a basis for disciplinary liability.

Therefore, the Council remained in line with the European recommendations and canceled the decisions of its colleagues. After all, this authority should not be transformed into an additional court instance. The participants in the proceedings must learn to use procedural mechanisms, and not to settle scores with judges by filing complaints against them.